A Local Authority v X (The Mother) (First Respondent) Y (The Child) (by his Guardian, G) (Second Respondent) Z (The Father) (Third Respondent) P and Q (Foster Carers) (First and Second Interveners) U (Maternal Uncle) (Third Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moor |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] EWFC 70 |
| Court | Family Court |
| Date | 03 July 2015 |
[2015] EWFC 70
IN THE FAMILY COURT
At A Civil Justice Centre
Mr Justice Moor
and
and
and
and
Mr Julian Lloyd for the Applicant/Local Authority
Ms Kathryn Anslow for First Respondent/Mother
Ms Gaynor Lloyd for the Second Respondent/Guardian
Mr Richard O'Sullivan for the Third Respondent/Father
Hearing dates: 29th June to 3rd July 2015
FINAL WELFARE JUDGMENT
—
I have been hearing care proceedings and an application for a placement order in relation to a young boy, Y. He is coming up to seven months old.
I gave an interim judgment on 1st July 2015 on a discrete issue following a fact finding hearing. This judgment must be read in conjunction with that earlier judgment.
Y's father is Z, (hereafter “the Father”). He is aged 33.
Y's mother is X (hereafter “the Mother”). She is aged 30. She has a chronic history of substance and alcohol misuse, although she is making a significant effort to sort out her problems. She has been free of heroin for some years. She takes the heroin substitute, methadone and is gradually reducing her dosage. Unfortunately, she has recently had some liver problems which are being investigated but have caused her further ill-health.
An application was made for a care order on 10th December 2014. An interim care order was made on 15th December 2014 and Y remains in short term foster care albeit having supervised contact to both his parents. A subsequent application was made on 4th June 2015 for a placement order for adoption pursuant to section 21 of the Adoption and Children Act 2002.
The Father made an application on 26th May 2015 for a declaration of parentage and a residence order.
The orders sought
The Local Authority seeks a full care order in relation to Y. It also seeks a placement order for adoption. The Final Care Plan is dated 2nd June 2015. The Guardian supports the Local Authority in relation to both applications.
The Mother has taken the very brave decision that she is not in a position to care for Y within his timescales given her own difficulties as outlined above. With great reluctance, she too supports the making of a final care order and a placement order for adoption.
The Father does not support either the making of a full care order or a placement order. He seeks an order that Y reside with him. By closing submissions, Mr O'Sullivan was not seeking an immediate placement of Y with the Father but was asking me to continue the interim care order to enable there to be a psychological assessment of the Father. No Part 25 application has been made, although I am clear that I should not refuse the application on that basis but should deal with it on the merits. Mr O'Sullivan indicated that two suitable psychologists could report by mid-August or early September.
The law
It is accepted that the threshold criteria under section 31 of the Children Act 1989 is established in this case. In other words, Y is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give [Children Act 1989, section 31(2)].
This does not mean that a care order will automatically follow. Before I can make such an order, I must consider the welfare of Y, reminding myself that Y's welfare during his minority is my paramount consideration (section 1(1) of the Children Act 1989).
I must have regard to section 1(2) and the general principle that any delay in determining the question is likely to prejudice the welfare of the child. This must now be combined with the requirement to conclude care proceedings in a maximum of twenty six weeks unless there are exceptional circumstances.
I must next consider the welfare checklist in section 1(3) of the Children Act 1989 and the “no order” principle in section 1(5). In this case, it is clear that I must make an order. Indeed, all parties urge me to make orders, albeit different ones.
Turning to the application for the placement order, I can only make such an order if the child is subject to a care order or I am satisfied that the conditions in section 31(2) of the Children Act as to threshold are met. As already noted, it is agreed that this is the case and I have satisfied myself of that.
A court will only make a placement order if it is justified having given paramount consideration to the child's welfare “throughout his life” (section 1(2) of the Adoption and Children Act 2002). Again, I must bear in mind that delay in coming to the decision is, in general, likely to prejudice the child's welfare [section 1(3)]. I must have regard to the checklist set out in section 1(4) of the Act. I specifically remind myself that this includes consideration of matters that do not feature in section 1 of the Children Act 1989, including the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person. I must further consider the relationship which the child has with relatives, including:—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so;
(ii) the ability and willingness of any of the child's relatives…to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs;
(iii) the wishes and feelings of any of the child's relatives, or of any such person regarding the child.
Section 1(6) provides that the court must always consider the whole range of powers available to it (whether under the 2002 Act or the Children Act 1989) but must not make any order under the 2002 Act unless it considers that making the order would be better for the child than not doing so.
Section 21(3) provides that, in the absence of parental consent, I can only make a placement order if I am satisfied that parental consent should be dispensed with. Pursuant to section 52(1), I need to be satisfied that the welfare of the child requires the consent to be dispensed with. This is to be done in the light of the current circumstances (see McFarlane LJ in Re B-S [2013] EWCA Civ 813 at Paragraph [13]).
Evidential basis for orders
Mr O'Sullivan, who appears on behalf of the Father, rightly reminds me that I must be satisfied as to the evidential basis for any order that I make. The burden of proof is on the Local Authority. The standard of proof is the balance of probabilities.
In Darlington BC and M [2015] EWFC 11, the President said at Paragraph 10:—
“The second practical and procedural point goes to the formulation of threshold and proposed findings of fact. The schedule of findings in the present case contains…allegations in relation to the father that “he appears to have lied” or colluded, that various people have “stated” or “reported” things and that “there is an allegation”. With all respect to counsel, this form of allegation, which one sees far too often in such documents is wrong and should never be used. It confuses the crucial distinction, once upon a time, though no longer, spelt out in the rules of pleading and well understood, between an assertion of fact and the evidence needed to prove the assertion…..The relevant allegation is not that “he appears to have lied” or “X reports”. The relevant allegation, if there is evidence to support it, is that “he lied” or “he did Y”.
He further reminds me of the wise words of Hedley J in Re L [2007] 1 FLR 1050 to the effect that children are, in general, best brought up within natural families. He said:—
“It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others will flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting; in any event, it simply could not be done.”
He relies on Re B-S [2013] EWCA Civ 1146 where the President said at Paragraph 29:—
“It is the obligation of the local authority to make the order which the court has determined proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking”
The Judgment continues at Paragraph 40 by making it clear that sloppy practice must stop, adding...
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